1 Mental Disability L. Rep. 162 (1976-1977)
Section VII: Items of Interest

handle is hein.journals/menphydis1 and id is 164 raw text is: SECTION VII:

Items of Interest

Judge Orrin G. Judd Dies at 69

U.S. District Judge Orrin G. Judd, who presided
over four years of litigation in the Willowbrook
mental retardation case and ordered broad new
rights for mentally retarded people, died suddenly
on July 7, 1976, at the age of 69.
Although considered a judicial conservative in
some respects, Judge Judd did not shy away from
difficult or controversial issues. In perhaps his
most publicized ruling, he issued a decision in
July, 1973, which ordered a halt to the United
States' bombing of Cambodia. Holtzman v.
Schlesinger,361 F.Supp. 553 (E.D. N.Y. 1973). (The
order was stayed and then reversed by an appel-
late court, 484 F.2d 1307 (2nd Cir. 1973), and never
actually took effect before Congress stopped the
bombing by legislative means.)
Judge Judd was also concerned with the rights
of persons confined to prisons and jails. In 1974,
he held that it was cruel and unusual punishment
to confine two inmates in a one-man cell while
awaiting trial in New York City's Houses of Deten-
tion in Brooklyn and Queens, a finding that was
upheld by the U.S. Court of Appeals for the Sec-
ond Circuit (Detainees of Brooklyn House of De-
tention for Men v. Malcolm, 520 F.2d 392 (2nd Cir.
1975)). When New York officials failed to remedy
the situation, the judge ordered them to begin re-
leasing the pre-trial detainees who had been held
for the longest time on the lowest bail, until dou-
ble ceiling could be eliminated. In so ruling, he
refused to accept lack of funds as an excuse for
noncompliance:
IT]his court is not prepared to say that
budget cuts made at the expense of the
poor and the friendless justify indefinite
delay in providing constitutional condi-
tions of custody.
Valvano v. Malcolm, 18 Cr. L. Rptr. 2394 (De-
cember 17, 1975).
But it is in the area of mental disability that
Judge Judd's work is likely to have its most lasting
impact. The Willowbrook case came before him in
1972 as a result of the revelation of scandalous
conditions at the (then) 5,000-bed State facility on
Staten Island. In April, 1973, he issued a prelimi-

nary order in the case (New York State Association
for Retarded Children and Parisi v. Rockefeller,
357 F.Supp. 752 (E.D. N.Y. 1973)), in which he re-
jected the usual arguments for a constitutional
right to treatment and granted limited relief on the
basis of a new, but narrow, theory of a right to
protection from harm.
But subsequent events in the Willowbrook litiga-
tion demonstrated that while judicial decisions are
supposed to represent the inevitable, if not
mechanical, application of settled legal principles
to a given state of facts, a great deal depends
upon the wisdom, compassion, and understanding
of the judge who hears the case and applies the
law. Judge Judd had visited Willowbrook, and was
clearly troubled by what he saw there and by what
he heard in the 15 days of testimony at the trial on
merits in late 1974 and early 1975. Moreover, the
judge maintained an open mind about the poten-
tialities of mentally retarded people, including
their ability to be returned to the community, and
about the power of the court, acting within his
view of the law, to improve the lives of Willow-
brook residents and other members of the plaintiff
class.
The result was a sweeping consent order (New
York State Association for Retarded Children and
Parisi v. Carey, No. 72-C-356/357 (E.D. N.Y., April
30, 1975), 1 MDLR 58, approved 393 F.Supp. 715
(E.D. N.Y. 1975)), in which the skeletal right to pro-
tection from harm in the 1973 opinion was ex-
panded to include protection from regression in
the intellectual, emotional, social, and physical
spheres, and from loss of developmental potential
in all these areas. The extensive and detailed relief
approved by the judge was based on his recogni-
tion that
... retarded persons, regardless of the
degree of handicapping conditions, are
capable of physical, intellectual, emo-
tional and social growth, and upon the
further recognition that a certain level of
affirmative intervention and program-
ming is necessary if that capacity for
growth and development is to be pre-
served, and regression prevented.

MENTAL DISABILITY LAW REPORTER

SEPTEMBER-OCTOBER 1976

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